In an Oct. 13, 2008 letter McCain-Palin General Counsel Trevor Potter
wrote to YouTube CEO Chad
Hurley, General Counsel Zahavah
Levine, and William Patry,
Senior Copyright Counsel at Google, to complain that:

"...overreaching
copyright claims have resulted in the removal on non-infringing
campaign videos from YouTube, thus silencing political speech.
Numerous times during the course of the campaign, our advertisements or
web videos have been the subject of DMCA takedown notices regarding
uses that are clearly privileged under the fair use doctrine. The
uses at issue have been the inclusion of fewer than ten seconds of
footage from news broadcasts in campaign ads or videos, as a basis for
commentary on the issues presented in the news reports, or on the
reports themselves..."

From
YouTube Oct. 14, 2008

YouTube
Response Letter to Senator McCain

From the Chief
Counsel at YouTube

Dear Mr. Potter:

Thank you for your thoughtful letter dated October 13, 2008. We are
very happy about the extent to which the McCain-Palin campaign and,
indeed, all of the presidential campaigns, are using YouTube as a
platform to reach out to Americans in this critical election year.

Your letter raises important issues relating to the Digital Millennium
Copyright Act (DMCA) that directly affect the YouTube community. As
your letter acknowledges, the DMCA provides a statutory safe harbor for
service providers such as YouTube that host content at the direction of
users. Without this safe harbor, sites like YouTube could not exist. To
strike the proper balance between rights holders and content uploaders,
Congress had the foresight to implement a notice-and-takedown regime
that allows rights holders to submit takedown notices for uploaded
content that the rights holders believe infringes their rights. If
service providers remove the content in response to a notice, they
maintain their safe harbor and avoid potential copyright infringement
liability. If, on the other hand, service providers do not remove the
content in response to such notice, they do so at their own risk
because they lose their safe harbor.

The DMCA protects content uploaders from erroneous or abusive takedown
notices in two distinct ways. First, it allows uploaders to file a
counter-notification in response to a takedown notice they believe to
have been made in error. Once the uploader files a
counter-notification, the statute allows the service provider to
reinstate the content after a waiting period of 10 business days
without jeopardizing its safe harbor, provided that the rights owner
does not file a copyright infringement lawsuit against the content
uploader during that waiting period. Second, Section 512(f) of the DMCA
allows parties injured by fraudulent takedowns to sue the claimant for
damages.

Despite penalties of perjury, the counter-notification process and the
very real possibility of lawsuits for damages, some parties still abuse
the DMCA takedown process and seek the removal of content that does not
infringe their rights. Because of the DMCA's structure, an abusive
takedown notice may result in the restriction of non-infringing speech
during the statutory 10-day waiting period. We recognize this potential
for abuse, and have a number of measures in place to combat it. Indeed,
we have spent numerous hours tracking down abuse, terminating offending
accounts and reinstating affected videos. See, e.g., the EFF's blog
post at http://www.eff.org/deeplinks/2008/09/youtube-anti-scientology-takedowns-good-news-bad-n-0
describing one such case. While we have successfully reduced the amount
of abuse, we have not eliminated it.

Some have suggested that YouTube mitigate abuse by performing a
substantive legal review of every DMCA notice we receive prior to
processing a takedown. For a number of reasons, this is not a viable
solution. As you recognize in your letter, a detailed substantive
review of every DMCA notice is simply not possible due to the scale of
YouTube's operations. Any such review would have to include a
determination of whether a particular use is a "fair use" under the
law, which is a complex and fact-specific test that requires the
subjective balancing of four factors. Lawyers and judges constantly
disagree about what does and does not constitute fair use. No number of
lawyers could possibly determine with a reasonable level of certainty
whether all the videos for which we receive disputed takedown notices
qualify as fair use.

More importantly, YouTube does not possess the requisite information
about the content in user-uploaded videos to make a determination as to
whether a particular takedown notice includes a valid claim of
infringement. The claimant and the uploader, not YouTube, hold all of
the relevant information in this regard, including the actual source of
any content used, the ownerships rights to that content, and any
licensing arrangements in place between the parties. YouTube is a
merely an intermediary in this exchange, and does not have direct
access to this critical information. When two parties disagree, we are
simply not in a position to verify the veracity of either party’s
claims.

Your suggestion that we limit our reviews and fair use analysis to
"political candidates and campaigns" attempts to address our scale
issue, but it does not address the information problem mentioned above.
The fact remains that we do not know who owns what content included in
user uploaded videos, who uploaded those videos or what authorization
the uploader may or may not have to use the content. Moreover, while we
agree with you that the U.S. Presidential election-related content is
invaluable and worthy of the highest level of protection, there is a
lot of other content on our global site that our users around the world
find to be equally important, including, by way of example only,
political campaigns from around the globe at all levels of government,
human rights movements, and other important voices. We try to be
careful not to favor one category of content on our site over others,
and to treat all of our users fairly, regardless of whether they are an
individual, a large corporation or a candidate for public office.

The real problem here is individuals and entities that abuse the DMCA
takedown process. You and our other content uploaders can play a
critical role in helping us to address this difficult problem of
takedown abuse. You are operating from the position of strength, with
knowledge of exactly where the content in your videos came from. You
can file counter-notifications. You can seek retractions of abusive
takedown notices. You can hold abusive claimants publicly accountable
for their actions by publicizing their actions. You can hold claimants
legally responsible for their actions by filing a lawsuit under 512(f).
We believe that with your vigilance and efforts in these areas, we can
go a long way towards minimizing abusive takedown behavior.

On a final note, we hope that as a content uploader you have gained a
sense of some of the challenges we face everyday in operating YouTube.
We look forward to working with Senator (or President) McCain on ways
to combat abuse of the DMCA takedown process on YouTube, including, by
way of example, strengthening the fair use doctrine, so that
intermediaries like us can rely on this important doctrine with a
measure of business certainty.

Thank you again for your thoughtful letter and concern about this
important challenge.